I attended my pretrial yesterday 03/27

Hi work at home mom, someone will be along shortly to maybe answer your questions. I have been sued before but it was brought to my state/my county. I thought with the collection agency, they had to be licensed to collect in your state which usually meant that you get sued in your state (local court). Never heard of them doing it elsewhere and you having to 'arrange' for it to be transferred. Also figured thats going to add $$$ on to that $2500. Also, you can bet that if the collection agency can find a loop hole to get through to still make this debt legal, they're going to do it (picking their state laws on SOL instead of yours).Maybe someone else can help. If a judge wasn't already involved in this, I would think it sounded alittle screwy.

Thank you Shirley, I hope someone will come along soon. :)

I have already written extensively about the effect and application of statutes of limitations, but I don't know where I put it. You can find it by clicking on the "Author's Kit" icon on the left.

And, before I plunge in on discussion, I want to ask you a couple of questions: first,
- what state do you live in?
- is it the same state as the person who got the service of process for you?
- what kind of contract was it, credit card, auto loan, what?
- was there a written contract?
- if so, do you have a copy of it, and did the plaintiff include a copy as part of the initial pleading filed in the case?
- does the written contract contain a provision that says the laws of such and such a state will apply, and if so, what state is it?

There are two key points I want to emphasize with respect to your situation: first, you have to take action - I'm a bit concerned because you said something about expecting someone to send you a letter. You didn't say that, after talking to the attorney, you went back into the courtroom to find out what the judge was going to do. If, after talking to the lawyer, you did not go back to the judge to ask for the filing of a bill of particulars, or a motion demanding that they produce the contract as part of their pleadings, and you don't know what the deadlines are in your case, and you don't know when the trial date is, and in most states, there isn't going to be any letter. Can you imagine those busy people in the clerk's office sending out letters to all the litigatants? You need to go to the clerk's office, right quick, and find out what's going on, and you need to file some written motions and show up in court to argue the motions. I strongly recommend you get a lawyer in your area to review the situation for you. Even if you're right, this matter is not going to resolve itself, no one is going to say, "Oh! We must be mistaken! Let's drop this case right now!" The judge is not going to look out for your interests, and it is not the judge's job to do that - it's your job and if you need help get a lawyer (or take what you get).

By the way, you weren't properly served - the first thing you should do is to move to dismiss for bad service of process - you're not properly subject to the jurisdiction of the court. (You didn't sign anything when you went into the courtroom, did you?)

And, secondly, you're probably right about the statute of limitations: the statute of limitations is a matter of the law of your state, since it's procedural and not substantive. There are two exceptions to that: first and foremost, if your state has a statute that says that, in an action on a contract that has a choice of law provision, entered into applying a different state's law, that it is the statute of limitations of that state that governs and not yours (Virginia has a statute that says something like that, but the defendant gets the benefit of the shorter of the two), then the law of your state imports the statute of limitations of the foreign state. Secondly, if your contract contains a waiver of the defense of the statute of limitations and your state allows such clauses, then it doesn't matter what the SOL may be.

Depending on what kind of contract you have, the plaintiff's state law may apply, but as to the computation of interest only, if the plaintiff is a "national bank", by virtue of a federal law that gives banks organized under the National Banking Act special privileges. (Lots of collections lawyers think that the entire law of the foreign state applies, but it ain't so. 12 U.S.C. section 85.)

Here are some excerpts of U.S. Sup. Ct. cases discussing the difference between procedural and substantive law as it applies to statutes of limitations:

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The historical record shows conclusively, we think, that the society which adopted the Constitution did not regard statutes of limitations as substantive provisions, akin to the rules governing the validity and effect of contracts, but rather as procedural restrictions fashioned by each jurisdiction for its own courts. As Chancellor Kent explained in his landmark work, 2 J. Kent, Commentaries on American Law 462-463 (2d ed. 1832): “The period sufficient to constitute a bar to the litigation of sta[l]e demands, is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience.”

Sun Oil Co. v. Wortman, 486 U.S. 717, 726 (1988)

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(footnote 10) Under traditional choice-of-law principles, the law of the forum State governs on matters of procedure. See Restatement (Second) of Conflict of Laws ?? 122 (1971). In New Hampshire, statutes of limitations are considered procedural. Gordon v. Gordon, 118 N. H. 356, 360, 387 A. 2d 339, 342 (1978); Barrett v. Boston & Maine R. Co., 104 N. H. 70, 178 A. 2d 291 (1962). There has been considerable academic criticism of the rule that permits a forum State to apply its own statute of limitations regardless of the significance of contacts between the forum State and the litigation. See, e.g., R. Weintraub, Commentary on the Conflict of Laws ?? 9.2B, p. 517 (2d ed. 1980); Martin, Constitutional Limitations on Choice of Law, 61 Cornell L. Rev. 185, 221 (1976); Comment, The Statute of Limitations and the Conflict of Laws, 28 Yale L. J. 492, 496-497 (1919). But we find it unnecessary to express an opinion at this time as to whether any arguable unfairness rises to the level of a due process violation.

Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984)

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In addition to the reasons already given for my view that Florida law constitutionally may govern this case — that Florida, the forum State, has sufficient contacts with the parties, the property insured and the lawsuit — I would add that when a contractual provision is one dealing with limitations on actions, it is particularly inappropriate to compel the forum State, as a constitutional matter, to [Page 222] apply the law of the place where the contract was “made.” This Court has long recognized that the States where law-suits are tried are free to apply their own statutes of limitations. This has been the constitutional rule since the decision in 1839 of M'Elmoyle v. Cohen, 13 Pet. 312. The continued vitality of this principle was recognized by the Court in Wells v. Simonds Abrasive Co., 345 U.S. 514, 516-517. The only deviation from it appears to have been Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, which applied a special rule freeing fraternal insurance companies because of their “indivisible unity,” a distinction to which I registered my dissent. It is true that this case is not identical with one in which the forum seeks to apply an ordinary statute of limitations to a suit on a contract having no limitation clause. Here, Florida, seeking to be sure that its own limitation rules and no others apply to cases in its courts, has legislated that contractual limitations of too short duration are invalid. The Court of Appeals called it error to assume “that the issue presented concerned the choice of the applicable statute of limitations rather than the choice of the substantive law governing the validity of the contract itself.” But the same reasons for the view that the forum may refuse to apply a foreign statute of limitations impel me to the view that the forum may refuse to apply a foreign contract of limitations. See Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 627-630 (dissenting opinion). And cf. Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580.

Clay v. Sun Insurance Office, 363 U.S. 207, 221-222 (1960)

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Hi Virginia legal defense. I appreciate you taking the time out to try and assist me.

I live in Florida.
I guess the person who got the service of process for me is in florida, because on the summons, it says the attorney is representing plaintiff Sprechman and Associates, P.A. in Miami Fl.

Contract is a credit card for discover bank. *think they sold the acct to a collection agency, the one that is suing me now.

No don't have a copy of the contract.

Yes after speaking with the attorney, I told him i wasn't properly served and that the sol had passed. He was being a jerk about it, saying that even though i wasn't properly served, i still got "word" that I should appear in court, i said but what if my mom didn't informed me, then i wouldn't have been here today. He really didn't care, he just went on to say the good thing is i was informed and thats pretty much the purpose of the summons. Then he took my correct address. He told me that the company who is suing is probably using the sol for where the credit card bank is, i thought that wasn't fair if thats the case because i was living in florida when i applied for the cc and still do. he didn't care about that either, said if i want to use the sol, we can always go to trial, i may win or he may win, but we will just have to see.

After our discussion, we went back to the Judge. He looked over my file, and asked if i was disputing that the charges are not mine, i told him i know the charges are mine, but i'm disputing the amt and the fact that the sol has passed. So he said he will be setting a date for trial and i had to come back to his court once i recieved the summons. I told him it was inconvenient for me to travel 1.5hrs back to this court again, and thats when i told him i wasn't properly served, but he didn't care. Said he had no idea why i wasn't served at my place of residence, and if i wanted to get the case transferred to my city, then i had to file a notice of transfer. asked him if he had forms for that, he said no, i had to send a written notice and it was not a guarantee. so he basically didn't care either that i wasn't served properly.

No, I didn't sign anything in the courtroom. And I wasn't given any form of paperwork or anything.

So with that said, you think i should get a lawyer right? i'm considering it because i doubt i can do this by myself.

Thanks again for assistance. I appreciate it.

I do think you should get a lawyer. One thing to consider is the cost of losing the case as opposed to the cost of hiring a lawyer. Although, the lawyer on the other side has been put on notice of where you actually live, and if he doesn't take action himself to get the case transferred, he's going to be in violation of the Fair Debt Collection Practices Act, more on that elsewhere in this website, which provides for reimbursement of attorneys' fees. Your damages in an fdcpa suit would include the cost of defending yourself as well as the amount of any judgment obtained against you.

By "the person who got service", I meant your mom, the person who received it, not the person who asked that it be issued.

Do I understand correctly that the plaintiff is a company that you've never entered into any kind of contract with? That's why you think the debt has been sold?

I'm looking up some Florida law on the subject, now. Btw, what's the name of the plaintiff, and what's the name of the original creditor? And did you send these guys a demand for verification letter?

Ok, the person who was served is a friend of the family, my sister's friend actually. She doesn't live with my mom, was just visiting, when the person showed up with the summons. She was the only one home at the time.

on the summons it says the Plaintiff: SURF CONSULTANTS, INC. as successor in interest to Discover Bank.

Then at the bottom of the summons, it says:
Scott E. Modlin, Esq.
Attorneys for Plaintiff
Sprechman & Associates, P.A.
2775 Sunny Isles Blvd, Ste 100
Miami, Fl 33160.

No i didn't send any demand for a verfication letter.

Thanks for looking up info on Florida Law for me. You have been very helpful thus far.

The only statute I can find in Florida that allows for the importation of foreign statutes of limitations applies only to domestic relations orders of support and maintenance.

these Florida statutes might interest you:

"559.715 Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default. "

"95.10 Cause of action arising in another state.--When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state. "

The SOL on a written contract is five years in Fl. section 95.11 (2)(b); and four years for unwritten contracts and open accounts, 99.11(3)(k) and (p).

Lots of good stuff on Florida law available at:
http://www.flsenate.gov/

Well, Surf isn't a national bank, and isn't entitled to the interest provisions of the National Banking Act.

If they can't produce a written contract, they can't tell the court what the terms and conditions were, so there's no basis for an assertion that any law other than Florida law applies.

Even in states that allow substituted service, it's got to be at the home of the person served, and the person who receives the service of process has to be someone of suitable age and discretion, who actually lives in the house.

You've been VERY HELPFUL. :)

I will definitely get a lawyer on this. I may stand a chance. I take it credit card accounts are open accounts so the 4 yr sol would apply. Once again, I can't thank you enough for the time that you have put in to gather info for me.

Do you know how i can go about finding a lawyer that deals with this kind of case. I'm checking online for Debt Attorney's, but not coming up with much. Maybe i'm using the wrong terminology.

Thanks again.

Try looking under "consumer law" or "consumer protection".

Thank you, will let you know what I come up with. :)

In the process of filing a complaint against them with the Florida Bar against this attorney. Including, a judgement against with the Court under Florida Statutes 57.105 and will pursue further if I have to.

:hug:

Email removed per TOS KSCornell